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Friday round-up

Yesterday evening, the court asked both sides in Gloucester County School Board v. G.G., a challenge to a Virginia school board’s bathroom policy, to submit letters discussing “how the case should proceed in light of” the Trump administration’s revocation of prior guidance from the federal government that had interpreted a 1975 regulation to require schools to “treat transgender students consistent with their gender identity.” Amy Howe covers the development for this blog. Additional coverage comes from Lawrence Hurley at Reuters, who notes that the administration’s move has “raised the stakes” in the case, and from Lyle Denniston at his eponymous blog, who outlines the “options open to the Court in the wake of the new government policy view.” At his eponymous blog, Ross Runkel predicts that “the Court will remand the case without holding oral arguments,” because the “4th Circuit’s judgment was dependent on a guidance that no longer exists,” and  “this hot-button issue probably should be heard by a nine-Justice Court.”

On Wednesday, the court heard oral argument in Kindred Nursing Centers Limited Partnership v. Clark, which asks whether the Federal Arbitration Act pre-empts a Kentucky rule that requires a power of attorney to refer expressly to arbitration agreements before an attorney-in-fact can bind her principal to such an agreement. Ronald Mann analyzes the argument for this blog. At Bloomberg BNA, Patrick Gregory reports on all this week’s oral arguments.

Jim Gerl of the Special Education Law Blog looks at Wednesday’s decision in Fry v. Napoleon Community Schools, in which the court ruled in favor of a family seeking to challenge in federal court a school district’s refusal to allow a disabled child to bring her service dog to school, arguing that “this decision causes more problems than it solves,” because it is based on the court’s erroneous belief that “the only relief that a hearing officer can give is relief for a denial of [a free appropriate public education].” Constitution Daily also covers the decision.

In another opinion issued on Wednesday, Life Technologies Corporation v. Promega Corporation, the justices held that the supply of a single component of a multicomponent invention for manufacture abroad does not trigger liability under a provision of the Patent Act. John Duffy has this blog’s opinion analysis. In a column in Bloomberg View, Noah Feldman weighs in on the decision, maintaining that its “practical consequences” could be significant, as could “the court’s apparent view that the key U.S. appeals court for patent cases has been too sympathetic to patent holders.”

In The New Yorker, Jeffrey Toobin offers six questions for senators to ask Judge Neil Gorsuch during his confirmation hearing, observing that “in the event that Gorsuch is asked these questions, he probably will not answer them—but that shouldn’t prevent the American public from thinking about what the answers ought to be.” In an op-ed in The Washington Post, Nancy Northup and Rachel Tiven argue that despite President Donald Trump’s statement that Roe v. Wade and its progeny should be overruled but that the court’s marriage equality decision is settled law, “both Obergefell and Whole Woman’s Health rest on a shared foundation of legal precedent,” and that given “the president’s promise to take our rights away, we must ensure that full, detailed questions are asked of this nominee and that we get the answers we deserve.”


  • At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and Frank Garrison urge the court to grant a pending cert petition seeking review of a court of appeals decision upholding a U.S. Department of Labor regulation on tip-pooling; they argue that “the circuit court’s opinion raises serious separation-of-powers concerns by allowing the DOL to exercise legislative power when it essentially rewrote an unambiguous FLSA provision.”
  • At Occupy Democrats, Grant Stern discusses a“longshot legal petition to nullify the 2016 federal elections based on the Constitution’s ‘Guarantee Clause’”; the justices will consider the petition at their conference on March 17.
  • At Empirical SCOTUS, Samuel Morse examines the justices’ recusal practices, evaluating “the nearly 90 times since October Term 2005, that justices of the Supreme Court have recused themselves from cases at the merits stage.”

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Recommended Citation: Edith Roberts, Friday round-up, SCOTUSblog (Feb. 24, 2017, 7:23 AM),